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Court of Criminal Appeal 7 May 2008

Fernando v R

[2008] NSWCCA 97

Sexual offences
CRIMINAL LAW CONVICTION APPEAL SEXUAL CRIMES DIFFERENT JURY VERDICTS JURY VERDICTS NOT UNREASONABLE

Citation: Fernando v R [2008] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 7 May 2008
Judges: McClellan CJ at CL, Simpson J, Price J

Background

The appellant was charged in the District Court with three counts of aggravated indecent assault (under s 61M of the Crimes Act 1900) and one count of sexual intercourse with a child aged between 14 and 16 years in circumstances of aggravation, namely that the child was under his authority (under s 66C(4)). All four counts arose from a single incident on 9 June 2006 involving a complainant who was 15 years old at the time.

The jury returned guilty verdicts on counts 1, 2 and 3, but acquitted the appellant on count 4 and the statutory alternative under s 66C(3). The entire Crown case rested on the jury accepting the complainant as a reliable and accurate witness, with no independent corroborating evidence.

The appellant appealed his convictions, arguing that the jury's differentiated verdicts were unreasonable. Because the same witness's evidence underpinned all four counts, the appellant contended the jury could not rationally convict on three counts while acquitting on a fourth.

  • Whether the convictions on counts 1, 2 and 3 were unreasonable in light of the acquittal on count 4, given that all counts depended solely on the complainant's evidence.
  • Whether the conviction on count 3 in particular was unreasonable, given the acquittal on count 4 and the factual proximity between those two counts.
  • Whether the test under s 6(1) of the Criminal Appeal Act 1912 was satisfied, that is, whether the guilty verdicts should be set aside as unreasonable.

Decision

Price J (with whom McClellan CJ at CL and Simpson J agreed) applied the test from M v The Queen (1994) 181 CLR 487: whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt on the relevant counts. The Court emphasised that the applicable standard under s 6(1) is unreasonableness, not inconsistency. A verdict of not guilty on one count does not automatically render guilty verdicts on other counts unreasonable.

Drawing on the joint judgment in MFA v The Queen (2002) 213 CLR 606, the Court noted several features of the jury system that explain differentiated verdicts. Juries are directed to consider each count separately and may accept a complainant's evidence on some counts while requiring additional confidence before convicting on others. A not guilty verdict does not necessarily imply disbelief of the complainant; it may reflect the high standard of proof and a cautious approach to individual charges.

The Court identified a combination of circumstances that provided a rational basis for reconciling the verdicts. Count 4 required the jury to be satisfied beyond reasonable doubt of a specific act (kissing the complainant on the clitoris), and the complainant did not raise this allegation until her police interview, unlike the subject matter of counts 1, 2 and 3 which was the subject of complaint on the day of the alleged events. Additionally, the description of the alleged act provided in the Crown's opening and the trial judge's directions may have caused uncertainty among jurors about precisely what they were required to find.

The Court also noted that the jury may have taken a practical view of the overall encounter, treating guilty verdicts on the three aggravated indecent assault counts as sufficient to reflect the appellant's culpability, consistent with the approach endorsed in MacKenzie v The Queen. On either reconciliation, the acquittal on count 4 did not imply the complainant had been disbelieved, and the convictions on counts 1 to 3 were open to the jury.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • The test under s 6(1) of the Criminal Appeal Act 1912 is unreasonableness, not inconsistency; differentiated verdicts on a single indictment do not automatically meet that threshold.
  • A jury acquitting on one count while convicting on others does not necessarily mean it disbelieved the complainant; the acquittal may reflect the heavy burden of proof and greater caution about the specific facts of a particular charge.
  • Where an appellate court can identify a rational way to reconcile differentiated verdicts, the convictions will ordinarily stand, provided the guilty verdicts were themselves open on the evidence.
  • Counts requiring proof of a specific act, supported by evidence that emerged later than other allegations, may reasonably attract greater jury scrutiny even where all counts share the same complainant.
  • Consistent with MacKenzie v The Queen, a jury may legitimately conclude that convictions on some counts adequately reflect an accused's culpability, without convicting on every count charged.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66C(3), 66C(4)
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- M v The Queen (1994) 181 CLR 487
- MacKenzie v The Queen (1996) 190 CLR 348
- MFA v The Queen (2002) 213 CLR 606
- R v Kiskarpati (NSW Court of Criminal Appeal, 4 November 1998, unreported)